Kalawati vs Prem Narayan Shrivastava

Sujoy Paul, J.—In a suit for eviction and recovery of rent, the respondent No. 2 filed an application under Order 1 Rule 10 C.P.C. It was stated in the application that plaintiff''s husband was executant of agreement of sale dated 04.11.1996 in her favour and therefore, she be impleaded as a party. Plaintiffs/petitioner filed reply dated 11.08.2012 and stated that respondent No. 2 is not a necessary party. This application is allowed by the court below by order dated 06.09.2012. The plaintiff filed application under Order 14 Rule 5 C.P.C. (Annexure P/4) in the said application, he prayed that one issue has been unnecessarily framed which be deleted. The Court below by the same order dated 06.09.2012 rejected the said application. The petitioner/plaintiff is aggrieved by this order, whereby the application of respondent No. 2 under Order 1 Rule 10 C.P.C. is allowed and his application preferred under Order 14 Rule 5 C.P.C. is dismissed. This order is called in question in this petition filed under Article 227 of the Constitution.

Shri P.D. Agrawal, Advocate for the petitioner submits that impugned order is cryptic and does not contain any reason. Petitioners'' defence against the application under Order 1 Rule 10 C.P.C. is not considered. The Court below has further erred in rejecting the application under Order 14 Rule 5 C.P.C. Shri Agrawal relied on certain judgments and submits that plaintiff is dominus litis and cannot be compelled to implead any body. He relied on Sunil and Others Vs. Satyanarayan Dubey and Others, By placing reliance on Section 54 of Transfer of Property Act, it is urged that merely because an agreement to sale is entered into, no right or title is created in favour of respondent No. 2.

Per Contra, Shri Ashish Shrivastava, Advocate for the respondent No. 1 and Shri A.V. Bhardwaj, Advocate for the respondent No. 2, supported the order passed by the Court below. They relied on 2013 (II) MPWN SN 57 (Vishnu Swaroop Joshi Vs. Janki Prasad Kurele). It is submitted that petitioner filed review application which was rejected by the order Annexure P/8 30.01.2013. This order is not under challenge and therefore, petition is not maintainable.

I have heard learned counsel for the parties and perused the record.

The suit is filed by the plaintiff against the husband of respondent No. 2. In the application (Annexure P/6), respondent No. 2 stated that her husband is the owner of the shop in question. He is also in possession. However, the husband of plaintiff and respondent No. 2 herein were executant of agreement of sale and therefore, she is a necessary party. Plaintiff in his reply denied it. It is stated that application is malicious and is filed in order to give benefit to the husband. It is further stated in the reply that respondent No. 2 is not a necessary party. This is settled in law that normally the plaintiff is dominus litis. He/she cannot be compelled to implead somebody as defendant/respondent. However, if it is established that impleadment is sought for with regard to a necessary party, Courts are not powerless to permit such impleadment. However, the litmus test is whether the person concerned is "necessary party" and without his presence suit cannot be decided.

Before dealing with the facts of the case, it is apt to remember that a Full Bench of this Court in Panne Khushali and Another Vs. Jeewanlal Mathoo Khatik and Another, opined that the plaintiff is dominus litis and cannot be forced to add parties against whom he does not want to fight unless it is a compulsion of the rule of law. Even multiplicity of litigation cannot be a ground to compel the plaintiff to add a person who is not a necessary party. It is further held that Court has no jurisdiction or power to add a person as a party who is neither necessary party nor proper property. The Apex Court in Vidur Impex and Traders Pvt. Ltd. and Others Vs. Tosh Apartments Pvt. Ltd. and Others, opined that a necessary party is a person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the Court. It is further held that a proper party is a person whose presence would enable the Court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made.

In the present case, plaintiff has not claimed any relief against the respondent No. 2. The stand of respondent No. 2 is that plaintiff''s husband was a signatory of an agreement of sale. Question is whether in this factual backdrop the respondent No. 2 can be said to be a necessary party or a proper property? This is settled in law that agreement of sale does not confer any right or title over the property. Thus, on the basis of such alleged agreement of sale, respondent No. 2 has not acquired the status of a necessary or proper party.

Shri Bhardwaj relied on judgment of Vishnu Swaroop Joshi (Supra). Para 7 of the said judgment shows that in the peculiar facts and circumstances of that case interference was made because party claiming himself to be a real owner (on the basis of a sale deed) prayed for his impleadment. In that case, the right was claimed on the basis of a sale deed whereas in the present case there is no averment or document to show that the respondent No. 2 is the owner of the suit property. Merely on the basis of agreement to sale the respondent No. 2 cannot be treated as proper or necessary party. On the basis of aforesaid analysis, in my opinion, Court below has erred in allowing the application under Order 1 Rule 10 C.P.C.

Apart from this, while dealing with the application under Order 14 Rule 5 C.P.C., the Court below has not dealt with the aspect whether the issue sought to be deleted has any relevance with the relief claimed. No doubt, issues are framed on the basis of pleadings but while framing issues it cannot be lost sight as to what is the nature of proceeding. The issues are required to be framed meticulously on the basis of pleadings of the parties by giving due regard to the nature of relief claimed. The Court below has not considered this aspect. Therefore, the impugned order suffers from manifest procedural impropriety.

On the basis of aforesaid analysis, the impugned order Annexure P/1 dated 06.09.2012 cannot be permitted to stand. The same is set aside. Resultantly, the application under Order 1 Rule 10 C.P.C. (Annexure P/7) is dismissed. The Court below is directed to rehear the parties on the application under Order 14 Rule 5 C.P.C. and pass a reasoned order in accordance with law expeditiously.

Petition is partly allowed. No costs.